On the heels of Judge Swain ruling that the NBA 2K video games could depict player tattoos, Judge Daniels has issued an opinion ruling that the popular video game Call of Duty can prominently feature Humvees, without violating the trademark laws. He concluded that including them in the game is an “integral element” of artistic expression, as opposed merely representing an attempt to piggy-back on the goodwill of Humvees (see our prior coverage here):
Both parties agree that at least “some of the vehicles in the Call of Duty Games are representative of those that a real-life soldier would expect to see in the time and place depicted.” Both parties also agree that U.S. and foreign militaries use Humvees in operations around the world.
If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal. The inclusions of Humvees in the foreground or background of various scenes — including several instances of players using Humvees to advance to the next level — are integral elements of a video game because they “communicate ideas . . . through features distinctive to the medium . . . .”